Commissioner of Taxation v Studdert

[1991] FCA 593

Re: DEAN WILLS; ROSS ADLER and PETER JOOSTE (IN THEIR CAPACITY AS MEMBERS OF
THE CORPORATIONS AND SECURITIES PANEL)
And: THE AUSTRALIAN SECURITIES COMMISSION; GODFREY CULLEN; MAXWELL LATIMER;
GARRY GRACO; DABBY PTY LTD; PRECISION DATA HOLDINGS LTD; TITAN HILLS AUSTRALIA
LTD; ROBERT ELLIOT; GARY BUSBY; CHINZONI PTY LTD and GALLIVAN INVESTMENTS LTD
No. V G3086 of 1991
FED No. 593
Corporations Law
103 ALR 473/6 ACSR 103/9 ACLC 1440

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY GENERAL DIVISION
Ryan J.(1)

CATCHWORDS

Corporations Law - limitations on power of Corporations and Securities Panel to make interim orders - need for declaration of unacceptable acquisition or unacceptable conduct - no temporal restriction on making of application for an interim order under s.735(2) - application for orders under s.734 may be made concurrently with application for declaration under s.733 - Panel may make interim orders of its own motion, provided that application for order under s.734 has been made by Australian Securities Commission and interim order is of kind to which the application by Australian Securities Commission relates.

Corporations Law ss.732, 733, 734, 735

Australian Securities Commission Act, 1989 (Cth) ss.171, 174, 193, 196 Companies (Acquisition of Shares) (Vic) Code ss.60, 60A

Davies (Inspector of Taxes) v Davies Jenkins and Co Ltd (1968) AC 1097

HEARING

MELBOURNE

#DATE 12:9:1991

Counsel for Applicant: Ms M. Sloss

Solicitor for Applicant: Australian Government Solicitor

Counsel for First Respondent: Mr P. Tribe

Solicitor for First Respondent: Australian Securities Commission

Solicitor for Second to Seventh Mr S. Newman of Ebsworth and Ebsworth
Respondent

Counsel for Eleventh Respondent: Mr P. Hanks

Solicitor for Eleventh Respondent: Abbott Stillman and Wilson

ORDER

The question of Law referred by the Panel to the Court is answered yes.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

On 4 July 1991, the Australian Securities Commission ("ASC") applied to the Corporations and Securities Panel ("the Panel") for a declaration under s.733(3) of the Corporations Law ("the Law") for a declaration that certain acquisitions of shares in Titan Hills Australia Limited ("Titan Hills") and in Precision Data Holdings Limited ("PDHL") were unacceptable.

1. Section 733 of the Law provides:
   

"(1) Where it appears to the Commission that unacceptable circumstances have, or may have, occurred:

(a) in relation to an acquisition of shares in a company; or

(b) as a result of conduct engaged in by a person in relation to shares in, or the affairs of, a company;

the Commission may apply to the Corporations and Securities Panel for a declaration under subsection (3) in relation to the acquisition or conduct.

(2) An application under subsection (1) may only be made before the end of:

(a) unless paragraph (b) applies - the period of 60 days after the day on which the acquisition took place, or the conduct was engaged in; or

(b) if the Panel extends that period of 60 days for a further period not exceeding, or for further periods not exceeding in total, 30 days - that further period, or the later or last of those further periods.

(3) Where, on an application under subsection (1), the Panel is satisfied:

(a) that unacceptable circumstances have occurred:

(i) in relation to an acquisition of sharesin the company; or

(ii) as a result of conduct engaged in by a person in relation to shares in, or the affairs of, the company; and

(b) having regard to the matters referred to in section 731 and any other matters the Panel considers relevant, that it is in the public interest to do so;

the Panel may by writing declare the acquisition to have been an unacceptable acquisition, or the conduct to have been unacceptable conduct, as the case may be."

"Unacceptable circumstances" are effectively defined as follows by s.732 of the Law:

"For the purposes of this Part, unacceptable circumstances shall be taken to have occurred if, and only if:

(a) the shareholders and directors of a company did not know the identity of a person who proposed to acquire a substantial interest in the company; or

(b) the shareholders and directors of a company did not have a reasonable time in which to consider a proposal under which a person would acquire a substantial interest in the company; or

(c) the shareholders and directors of a company were not supplied with enough information for them to assess the merits of a proposal under which a person would acquire a substantial interest in the company; or

(d) the shareholders of a company did not all have reasonable and equal opportunities to participate in any benefits, or to become entitled to participate in any benefits, accruing, whether directly or indirectly and whether immediately or in the future, to any shareholder or to any associate of a shareholder, in connection with the acquisition, or proposed acquisition, by any person of a substantial interest in the company."

1. The Panel has been established by s.171 of the Australian Securities Commission Act, ("the ASC Act") and pursuant to s.174 of that Act, has the functions and powers conferred on it by or under a national scheme law. Section 193 of the ASC Act provides;
   

"(1) A hearing shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of national scheme laws and a proper consideration of the matters before the Panel permit.

(2) At a hearing, the Panel:

(a) is not bound by the rules of evidence; and

(b) may, on such conditions as it thinks fit, permit a person to intervene.

(3) The Panel shall observe the rules of natural justice at and in connection with a hearing.

(4) At a hearing, 2 members form a quorum.

(5) The President shall preside at all hearings at which heor she is present.

(6) If the President is not present at a hearing, the Deputy President shall preside.

(7) Questions arising at a hearing shall be determined by a majority of the votes of the members present at the hearing.

(8) The member presiding at a hearing has a deliberative vote but not a casting vote."

1. The reference to this Court of a question which I shall later set out has been made under s.196(1) of the ASC Act which stipulates that;
   

"The Panel may, of its own motion or at a person's request, refer to the Court for decision a question of law arising at a hearing."

1. The ASC's application to the Panel concluded with the following paragraphs;
   

"Where the Panel is satisfied that unacceptable circumstances have occurred in relation to an acquisition of shares in a company or as a result of conduct engaged in by a person in relation to shares in or the affairs of a company, the Panel may declare the acquisition to have been an unacceptable acquisition and may make orders under section 734. The ASC will submit that such orders be made that the Takeover Scheme be cancelled and that such shares as Titan Hills has issued as consideration under the Takeover Offers be cancelled.

The shares issued by Titan Hills as consideration under the Takeover Offers have not yet been listed with the Australian Stock Exchange and, if it becomes necessary or desirable to do so, the ASC will submit to the Panel that interim orders be made under s.735(2), to defer the time at which such shares are admitted to quotation and thereby capable of easy transfer to third parties."

1. Before the date fixed by the Panel for the hearing of the ASC's application, proceedings were instituted in the High Court by some of the persons who had been nominated by the ASC as persons to whom the declarations sought would be related and who should be given the opportunity to appear at the hearing before the Panel. By those proceedings in the High Court, the plaintiffs seek, inter alia;
   

"A. A declaration that section 174 of the Australian Securities Commission Act 1989 (Cth) and sections 733 and 734 of the Corporations Law of Victoria are invalid.

B. A declaration that the Corporations and Securities Panel cannot validly exercise the functions and powers which sections 733 and 734 of the Corporations Law of Victoria purport to confer on the Panel."

1. It seems to be accepted by all those who appeared on the question referred by the Panel that this Court should resolve that question purely as a matter of construction of the relative provisions of the Law without trespassing on the issue of constitutional validity which is pending before the High Court.

2. At a hearing before the Panel on 29 July 1991, Mr Clark, a solicitor appearing for the ASC, agreed that there should be an adjournment pending the determination of the proceedings before the High Court. He went on to say:
   

"The only provision that the Commission would seek in the making of such an adjournment by the panel, would be for the panel to make interim orders which freeze the status quo in order to preserve the substance of the Commission's application and also so as not to limit the remedies available to the Panel when it finally determines the Commission's application to the panel."

1. Although, reservations were expressed by Counsel for some of the persons appearing before the Panel about its power to make interim orders in the circumstances which then obtained, the President of the Panel announced at the end of the hearing on 29 July 1991 that:
   

"The panel orders, with the consent of the affected parties and the ASC, that until the final determination of the commission's application or until further order, Titan Hills Australia Limited be restrained from registering the transfer of any shares acquired by any party in consideration for accepting the part A offer despatched by Titan Hills Australia to Precision Data Holdings Limited on 7 May 1991."

1. On 2 August 1991, Jenkinson J in this Court, on the application of the Panel, ordered that the period of time referred to in s.733(4)(c) of the Law for the making of a declaration or declarations by the Panel in respect of the application made by the ASC on 4 July 1991 be the period of 12 months or the period of 60 days after the day on which the High Court delivers judgment in Proceeding No M37 of 1991 whichever shall first end. On 27 August 1991, the ASC wrote to the Panel a letter which included these paragraphs:
   

"It is the intention of the Commission, if a declaration of unacceptable conduct is made subsequent to the hearing under s.733, to seek appropriate orders under s.734. Although the Commission has not formulated the precise orders which it would seek, it has foreshadowed that it will seek orders which in effect set aside the takeover scheme, and that contracts arising upon acceptance of the takeover offers made by Titan Hills be cancelled or declared to be voidable. The range of orders which the Panel is entitled to make on the application of the Commission is limited to the matters described in s.734(2) and the Commission had contemplated that the appropriate orders would be made pursuant to paragraph (b) (v) and (ix) of that sub-section, in substance returning all parties to the position they would have occupied, if the takeover scheme had not occurred. Although some further ancillary orders may be appropriate, and the commission reserves its rights to seek such orders, the Panel would be competent to set aside the takeover scheme, without seeking to affect third party rights. The Panel has a broad authority under paragraph (a) of sub-section 734(2), to make "any order that it thinks necessary or desirable to protect the rights or interest of any person affected by the acquisition or conduct." However it may not be appropriate if the Panel makes orders setting aside transactions which have already been completed (in which respect we note the provisions of s.735(8) in relation to orders under s.734) and which do not concern the acquisitions of the relevant shares.

For these reasons, and on the grounds that the above transaction to cancel the remaining shares held by Precision may inhibit or prevent the Panel from exercising its powers under s.734 of the Law in the event that the Panel makes a declaration under s.733, the Commission requests that the Panel reconvene to consider an application by the Commission for interim orders under s.735(2) that, until the expiry date,

1. Titan Hills not acquire any shares from dissenting offerees pursuant to s.701, or seek to register any transfer in respect of any such acquisition;

2. Precision not apply to the ASX to delist its securities or take any further step to cause or permit such delisting; and

3. Titan Hills and its directors be restrained from putting the proposed resolution for the cancellation of the remaining 7,817,819 Titan Hills shares still held by Precision to a meeting of Titan Hills shareholders;

where "expiry date" means 90 days from the date of order, or until the determination of the Panel application, whichever is the greater period (provided however that such period shall expire on 7 May 1992).

There is an issue as to whether the Panel may properly make the third order under s.735(2) in relation to which the Commission would like to make further submissions to the Panel when it reconvenes."

1. In the light of a contention on behalf of the plaintiffs in the High Court proceedings that, until it had made a declaration of unacceptable acquisition or conduct, the Panel had no power to make an interim order of any sort, the Panel invited written submissions on that and other issues and appointed a further hearing for 4 September 1992. On 3 September 1991 the ASC wrote another letter to the Panel embodying some further submissions on the issues to which the Panel's invitation had been directed. That letter recited amongst other things:
   

"1. THE PRECISE ORDERS SOUGHT BY THE COMMISSION. As foreshadowed in the Commission's letter dated 29 August 1991, a resolution for the cancellation of the remaining 7,817,819 Titan Hills shares still held by Precision Data Holdings Ltd ("Precision") was approved by a meeting of Titan Hills shareholders on 30 August 1991. The Commission seeks interim orders under s.735(2) that, until the expiry date,

1. Titan Hills be restrained from acquiring any shares from dissenting offerees pursuant to s.701, or seek to register any transfer in respect of any such acquisition;

2. Precision be restrained from applying to the Australian Stock Exchange (Melbourne) Ltd

("ASX") to remove Precision from the Second Board Official List or take any further step to cause or permit such delisting; and

3. Titan Hills be restrained from applying for Court approval under s.195 of the Law or from taking any further step to cause or permit the cancellation of the remaining 7,817,819 Titan Hills shares still held by Precision; where "expiry date" means 90 days from the date of order, or until the determination of the Panel application, whichever is the greater period (provided however that such period shall expire on 7 May 1992).

The Commission has foreshadowed that if the Panel makes a declaration of unacceptable acquisition or conduct, it will then apply to the Panel for orders under s.734. In this sense, therefore, the application under s.734 is already before the Panel.

Accordingly, the Commission now applies for the orders set out above pursuant to s.734. In doing so, the Commission reserves its right for further orders, after considering the Panel's findings pursuant to s.733(6)."

1. At its further hearing on 4 September 1991 the Panel received oral submissions amplifying what had earlier been put to it in writing. At the conclusion of that hearing the Deputy President of the Panel made this pronouncement:
   

The panel having read the written submissions of the Australian Securities Commission and the other interested parties and having heard the oral submissions today, is of the view that there is a serious question of law whether the panel has power to make interim orders under section 735(2) of the Corporations Law prior to it making a declaration of unacceptable conduct or unacceptable acquisition in circumstances where the Australian Securities Commission has purported to make application for orders under section 734(2) in the event that such a declaration is made. The panel is also of the view that, if it does have the power to make interim orders under section 735(2), it would proceed to make orders of the kind requested by the Australian Securities Commission in its letter dated 3 September 1991 as amended and clarified by Mr Menzies' oral submission today. Accordingly the panel proposes to refer to the court under section 196 of the Australian Securities Act the question of law whether it does have power to make interim orders in those circumstances. The application will be made by the panel expeditiously, and it invites the Australian Securities Commission and the other parties to appear at the hearing of that application and to make submissions.

Of course it would also be open to the Australian Securities Commission to seek any interim relief that may be available to it from the court at or prior to the hearing of that application."

1. The question formulated by the Panel for the opinion of this Court is:
   

"In the circumstances of the present case does the Panel have power to make interim orders under section 735(2) of the Corporations Law on the application made by the ASC dated 4 July 1991 and/or the application made by the ASC in its letters of 27 August 1991 and 3 September 1991."

1. Section 735 of the Law is in these terms:
   

"(1) The Panel may, before making a declaration under subsection 733(3) or an order under section 734, direct the Commission to give notice of the application to such persons as the Panel thinks fit, or to publish notice of the application in such manner as the Panel thinks fit, or both.

(2) Where an application is made to the Panel for an order under section 734, the Panel or the President of the Panel may, if in the opinion of the Panel or President, as the case may be, it is desirable to do so, make, before the Panel considers the application, an interim order, being an order of the kind to which the application relates that is expressed to apply pending the determination of the application.

(3) The provisions of subsections 734(3), (4), (5) and

(7), of subsections (5), (6), (7) and (8) of this section, and of section 736, apply in relation to an interim order under subsection (2) of this section as if such an order were an order under subsection 734(2).

(4) In addition to, and without limiting, their application as mentioned in subsection (3), the provisions referred to in that subsection apply, as so mentioned, as if the President were the Panel.

(5) An order by the Panel under section 734 may include such ancillary or consequential provisions as the Panel thinks reasonable and appropriate.

(6) Without limiting the nature of the orders that may be made by the Panel under section 734 directing the disposal of, or of an interest in, shares in a company, such an order may include one or more of the following provisions:

(a) a provision that the disposal shall be made within such time and subject to such conditions (if any) as the Panel thinks fit, including, if the Panel thinks fit, a condition that the disposal shall not be made to a particular person or persons or to a particular class or classes of persons;

(b) a provision that a specified person shall pay to the company the amount of, or an amount equal to the value of, any profit made by, or benefit accruing to, the person as a result of, or in connection with, the disposal of, or of an interest in, the shares.

(7) If the Panel makes an order of the kind referred to in subparagraph 734(2)(b)(vii), the exercise of rights attached to shares shall be disregarded as provided in the order.

(8) If the Panel makes an order of a kind referred to in subparagraph 734(2)(b)(ix), then, by force of this subsection, the agreement or offer specified in the order is cancelled, or becomes voidable, as the case requires, as from the making of the order or such later time as is so specified."

1. The references in that section to s.734 make it desirable also to set out the terms of the latter section:-
   

"(1) This section applies where, under subsection 733(3), the Corporations and Securities Panel:

(a) declares an acquisition of shares in a company to have been an unacceptable acquisition; or

(b) declares conduct engaged in by a person in relation to shares in, or the affairs of, a company to have been unacceptable conduct.

(2) On the application of the Commission, the Panel may, whether or not it has previously made an order under this section in reliance on the declaration, make in writing one or more of the following orders:

(a) any order that it thinks necessary or desirable to protect the rights or interests of any person affected by the acquisition or conduct or to ensure, as far as possible, that a takeover scheme or takeover announcement, or a proposed takeover scheme or proposed takeover announcement, in relation to shares in the company proceeds in the manner in which it would have proceeded if that acquisition had not taken place or that conduct had not been engaged in;

(b) without limiting the generality of paragraph (a):

(i) an order directing a person to supply specified information to the holders of shares in the company;

(ii) an order prohibiting the exercise of voting or other rights attached to specified shares;

(iii) an order directing a company not to make payment, or to defer making payment, of any amount or amounts due from the company in respect of specified shares;

(iv) an order prohibiting the acquisition or disposal of, or of an interest in, specified shares;

(v) an order directing the disposal of, or of an interest in, specified shares;

(vi) an order directing a company not to register a transfer or transmission of specified shares, being a transfer or transmission occurring after the commencement of this section;

(vii) an order that an exercise of the voting or other rights attached to specified shares be disregarded;

(viii) an order directing a company not to issue shares to a person who holds shares in the company, being shares that were proposed to be issued to the person because the person holds shares in the company or pursuant to an offer or invitation made or issued to the person because the person holds shares in the company;

(ix) an order cancelling, or declaring to be voidable, an agreement or offer that was made after the commencement of this section and that relates to a takeover scheme or takeover announcement, or to a proposed takeover scheme or proposed takeover announcement, or is otherwise connected with the acquisition of shares;

(x) an order directing a person who is registered as the holder of shares in respect of which an order under this section is in force to give written notice of that order to any person whom the holder knows to be entitled to exercise a right to vote attached to those shares;

(c) for the purpose of securing compliance with any order made under paragraph (a) or (b), an order directing a person to do, or to refrain from doing, a specified act.

(3) The Panel may, by written order, vary or revoke, or suspend the operation of, an order made under subsection (2).

(4) The Commission shall cause a copy of an order made under subsection (2) and of any order by which it is revoked or varied, or its operation is suspended, to be published in the Gazette and served:

(a) on each person to whom the order is directed; and

(b) where it relates to specified shares in a company - on the company.

(5) A person shall not contravene an order in force under subsection (2).

(6) The Panel shall not make an order, or vary an order that is in force, under subsection (2) unless it has given each person to whom the order is directed an opportunity to appear at a hearing before the Panel and to make submissions and give evidence to the Panel in relation to the matter.

(7) The Panel shall not make an order under this section if it is satisfied that the order would unfairly prejudice any person.

(8) Where the Panel makes an order, or varies an order that is in force, under subsection (2), the Panel shall give to each person to whom the order is directed a copy of a written statement of the Panel's reasons for the decision to make or vary the order."

1. In my view s.735(2) makes it clear that the Panel is enlivened with the power thereby conferred to make an interim order, only if an application is made to the Panel for an order under s.734. A limitation on that power is then imposed by the requirement for the interim order to be "an order of the kind to which the application (i.e. the application under s.734) relates"."

2. It is therefore necessary to resort to s.734 to see whether it can be said that an application under that section which is a prerequisite to the Panel's jurisdiction under s.735(2) has been made. The application of s.734 is itself conditioned on the Panel under s.733(3) declaring an acquisition of shares or relevant conduct to have been unacceptable. I regard "where" in both s.734(1) and s.735(2) as being used in the sense of "if" or "whenever"; c.p Davies (Inspector of Taxes) v Davies Jenkins and Co Ltd (1968) AC 1097 per Lord Morris of Borth-Y-Gest at 1118. Moreover, the need for a pre-existing declaration of an unacceptable acquisition or unacceptable conduct as a foundation for the power to make orders under s.734(2) is underlined by the recital in the prefatory words of that sub-section that the power is exercisable "whether or not (the Panel) has previously made an order under this section in reliance on the declaration" (emphasis added).

3. However, the operation of s.734 which is conditioned on the making of a declaration of an unacceptable acquisition or unacceptable conduct, is confined in terms to the power of the Panel to make orders of the kinds specified in s.734(2) and to matters ancillary thereto. Although the primary power to make orders which is conferred on the Panel by s.734(2) is exercisable only on application by the ASC, there is no express requirement anywhere in s.734 as to the time within which, or the manner in which, that application must be made; contrast s.733(2) which imposes express time limits on the making by the ASC of an application for a declaration of the kind specified in s.733(3). In the absence of an express stipulation that the ASC's application for one or more of the orders described in s.734(2) can only be made after a declaration of an unacceptable acquisition or unacceptable conduct, or a necessary implication to that effect, I decline to impose a temporal restriction, of the kind suggested, on the making of the application on which s.735(2) is predicated.

4. The construction which I favour effectuates one of the main purposes which can be discerned in Part 6.9 of the Law because it allows the Panel more fully to preserve scope for the effective operation of any order under s.734(2) which it might ultimately be persuaded to make. If an interim order could only be made after a determination of an unacceptable acquisition or unacceptable conduct before which the Panel is required by s.733(5) to accord natural justice to each person to whom the declaration relates, the usefulness of the facility afforded by s.735(2) would be much reduced.

5. I have found nothing in the legislative history of the relevant provisions or the extrinsic material produced when they were enacted which contradicts a construction that permits the ASC to apply for an order under s.734(2) at the same time as it applies for a declaration under s.733 or at any time thereafter before a declaration has been made. Under the Companies (Acquisition of Shares) Code the power to make a declaration of an unacceptable acquisition or unacceptable conduct was vested by s.60 in the National Companies and Securities Commission ("the Commission") itself. Power to make orders corresponding to those specified in s.734(2) of the Law in consequence of a declaration of unacceptable conduct was exercisable under s.60 (4) by the Court on the application of the Commission, the company or a member of the company. The Commission also had power under s.60A(1) to make a similar, but more limited, range of orders in consequence of a declaration of an unacceptable acquisition or unacceptable conduct. An order of that kind was in the nature of an interim order under s.735(2) of the Law because s.60A(7) provided:
   

"An order made under sub-section (1) ceases to operate at the expiration of the period of 30 days after the order is made or at the expiration of the day specified in the order as the day on which it ceases to operate, whichever is earlier."

1. Thus there was no place for an application by the Commission as a foundation for an interim order under the scheme embodied in the Companies (Acquisition of Shares) Code. It appears that a similar scheme was originally intended to be preserved in the Law as the Explanatory Memorandum to the first draft of the Corporations Bill noted that clause 734 "is to the same effect as CASA s.60A (except sub-s.60A(4) dealt with in cl.735)" and continued:
   

"2259. Where the ASC has declared certain conduct or acquisitions to be unacceptable, this clause confers power on the ASC to make certain "freezing" orders by written instrument published in the Gazette. The orders may be one or more of those set out in sub-cl.734(1) e.g. orders restraining particular persons from acquiring or disposing of certain shares or from exercising voting rights attached to certain shares. The ASC will be able to vary or revoke an order (sub-cl.734(2)). A person is not permitted to contravene such an order (sub-cl.734(4)). The fact that the ASC has previously made an order in respect of a particular declaration does not prevent it from making further orders

(sub-cl.734(1)).

2260. An order under the clause ceases to operate after 30 days, or on the day specified in the order, whichever is the earlier

(sub-cl.734(5)). Such an order cannot be made unless the person to whom it is directed has had an opportunity to be heard and to make submissions (sub-cl.734(6)). Under sub-cl.734(7), the ASC may not make an order in reliance on a declaration made by it, if:

(a) an application has been made to the Court for an order under cl.737;

(b) an application has been made to the Court under sub-cl.733(2); or

(c) the Court has revoked an order made in reliance on the declaration under cl.735."

1. When it was decided to interpose, by legislative enactment, the Panel between the ASC and persons to whom a declaration of an unacceptable acquisition or unacceptable conduct might relate, a corrigendum to paragraphs 2248-2262 of the Explanatory Memorandum was produced. As far as is relevant for present purposes, that corrigendum reads:
   

"Paragraphs 2248-2262 of this explanatory memorandum indicate that the ASC would, as did the NCSC under CASA, have power to declare certain acquisitions or related conduct unacceptable and to make certain temporary freezing orders where such declarations were made. However, it was envisaged, as indicated in paragraph 357 of the explanatory memorandum to the ASC Bill, that the Minister would direct that the above ASC powers be conferred exclusively on the Corporations and Securities Panel established under that Bill. As indicated in the corrigendum to the ASC Bill, the Panel jurisdiction will be conferred directly by specific provision in the Corporations Bill itself. The main elements of this approach are as follows:

. the Panel will have the same power to make declarations as the NCSC had under CASA (see cl.733); . before making a declaration, the Panel must be satisfied that unacceptable circumstances have occurred (see cl.732 - based on CASA sub-ss.60(1) and (3) and that a declaration is in the public interest having regard to any relevant matters including those set out in cl.731, e.g. the desirability of an efficient, competitive and informed market for the acquisition of shares (see para.733(3)(b)); . where the Panel makes such a declaration, it will be able, on the application of the ASC, to make any orders it considers necessary to, among other things, protect the rights of persons affected by the acquisition or conduct, including remedial orders of the type which were available to the Court under CASA sub-s.60(4) (sub-cl.734(2)). The Panel will also be able to make interim orders pending determination of an application for an order under sub-cl.734(2) (sub-cl.735(2))."

1. I see nothing in the corrigendum to indicate an intention that the application by the ASC for orders under sub-cl.734(2) or interim orders under sub-cl.735(2) must postdate the making of a declaration under cl.733. The sequential requirement is only that the making of the declaration must be anterior to the making of orders under cl.734(2). In that sense, as the corrigendum suggests, power is conferred on the Panel to make consequential orders "including remedial orders of the type which were available to the Court under CASA sub-s.60(4)".

2. The question remains whether any of the applications made by the ASC on 4 July 1991 and in its letters of 27 August 1991 and 3 September 1991 was an application for an order under s.734 of the Law so as to enliven the Panel with power to make an interim order under s.735. In my view, the invocation of s.734 in the first of the paragraphs from the application of 4 July which is quoted at p 4 of these reasons followed by the statement that "the ASC will submit that such orders be made that the Takeover Scheme be cancelled and that such shares as Titan Hills has issued as consideration under the Takeover Offers be cancelled" clearly amounted to an application for an order under s.734. That it was so understood by the ASC is made clear by the first two of the paragraphs from its letter of 27 August 1991 quoted at p 6 above. In the view I take of the legislation, it does not preclude an application for orders under s.734 from being "rolled up" with an application for a declaration under s.733. Nor is the ASC's formulation any less an application for an order under s.734, because it acknowledges that the making of such an order is contingent, as the Law requires, on a declaration having been made under s.733. Moreover, the existence of an application for an order under s.734 was put beyond doubt by the statement in the ASC's letter of 3 September 1991 that:
   

"Accordingly, the Commission now applies for the Orders set out above pursuant to s.734. In doing so, the Commission reserves its right for further orders, after considering the Panel's findings pursuant to s.733(6)."

1. The fact that a document also embodies an application for an interim order under s.735(2) does not prevent it from constituting an application for an order under s.734. The Panel may make an interim order of its own motion provided that an application has been made to it by the ASC for an order under s.734 and provided that the interim order can be said to be "of the kind to which the application (by the ASC for an order under s.734) relates".

2. For these reasons the question of Law referred by the Panel to the Court is answered yes.